Newbern, Application of

• Court: California Court of Appeals
• Writing for the Court: PER CURIAM
• Citation: Newbern, Application of, 335 P.2d 948, 168 Cal.App.2d 472 (Cal. App. 1959)
• Decision Date: 06 March 1959
• Docket Number: Cr. 6589
• Parties: Application of Emery Tilghman NEWBERN for a Writ of Habeas Corpus.

Page 948

335 P.2d 948

168 Cal.App.2d 472

Application of Emery Tilghman NEWBERN for a Writ of Habeas Corpus.

Cr. 6589.

District Court of Appeal, Second District, Division 1, California.

March 6, 1959.

Earl Klein, Los Angeles, for petitioner.

Roger Arnebergh, City Atty., Philip E. Grey, Asst. City Atty., and Wm. E. Doran, Deputy City Atty., Los Angeles, for respondent.

PER CURIAM.

By means of habeas corpus the petitioner seeks his release from custody after conviction upon his plea of guilty of a misdemeanor, the violation of section 41.27(a) of the Los Angeles Municipal Code (drunk in a public place). In support of his petition for release he asserts that the judgment rendered was in excess of the jurisdiction of the court in that it was in effect a judgment of banishment and that prior to his arraignment and plea of guilty he was not advised of his constitutional rights to counsel or given the opportunity to select counsel of his own choice.

As shown by the uncontroverted allegations of the petition and the affirmative allegations of the return, the facts are: On December 21, 1958, petitioner was arrested in the city of Los Angeles for violation of the ordinance above mentioned; after his arrest he was confined in the Lincoln Heights city jail; while so confined he suffered an epileptiform-type seizure; on the morning of December 22 there were in excess of 200 prisoners confined in 4 tanks adjacent to the courtroom of Division 58 of the Municipal Court of the Los Angeles Judicial District; on that morning prior to the time court had convened a deputy city public defender inspected the tanks in which these prisoners were confined and who were to be arraigned that morning; that he determined to his satisfaction that all the prisoners were awake and attentive. He then spoke from a microphone in the corridor of the jail addressing the prisoners confined in the 4 tanks and advised them of their right to a speedy and public trial, reasonable bail and that they were entitled to be represented by an attorney of their own choosing or if they were unable to employ counsel of their own choosing they could so inform the judge and that he, the public defender, would represent them. He further advised that they would be granted a continuance for that purpose. Thereafter he informed the clerk of the court that he was ready to proceed with the arraignments.

There is some conflict in the evidence before this court as to whether the petitioner was at the time the prisoners in the tanks were addressed by the public defender, confined in one of those tanks, or was, due to his illness, confined in the detention room off the booking office of the jail and in which there was no loud speaker connected with the public address system which the public defender used in advising the prisoners. In view of the conclusion we have reached as hereinafter stated, it is unnecessary for us to resolve this conflict.

Upon being arraigned before the court the following occurred: The prisoner asked the court if he pleaded guilty to the charge, if there was any chance of his being with his mother for Christmas, whereupon the judge asked: 'Where is she?' And petitioner answered: 'In Oklahoma City, Oklahoma.' And the judge then advised: 'Perhaps there is. Is your plea guilty to this charge?' And the prisoner answered: 'Yes sir, guilty.' The court then addressed the petitioner as follows: 'This document I have just signed is an order directing the Chief of Police to commit you to jail for a period of 180 days. However, there will be a five-day stay of execution in this matter, which means that you will be released now to get out of this state. This court warns you, however, that you had better get out of this state and stay out. You will be a fugitive from Justice, and while we will not extradite you from any other state on this, if you ever again set foot in the state of California, you are going to spend 180 days in jail just as surely as your name is Emery Newbern.' Petitioner left the state but returned and on January 28, 1959, was arrested under a bench warrant and confined pursuant to the judgment rendered by the court on December 22, 1958. He is now confined pursuant to that judgment. It is apparent from the record before us that the petitioner is a chronic alcoholic and has suffered numerous arrests for drunkenness.

The judgment of the municipal court as set forth in the transcript of the docket of that court, which is a part of the record here, does not reflect the language used by the court in sentencing the petitioner but is only that the petitioner be imprisoned in the city jail of Los Angeles county for 180 days and that the judgment be stayed for five days; the defendant to be released on his own recognizance. Neither does the commitment under the authority of which the petitioner was held in custody by the chief of police contain any reference to the petitioner leaving the state and not returning thereto, but only recites the fact that petitioner was to be imprisoned for 180 days.

It has long been the law of this state that a judgment of banishment either from the state or from one part of the state is void as against public policy. In re Scarborough, 76 Cal.App.2d 648, 173 P.2d 825; People v. Lopez, 81 Cal.App. 199, 253 P. 169. The court in the present case, however, was careful to so word its judgment as to not make it subject to attack as one of banishment. The judgment consists of merely a sentence to 180 days (the maximum penalty) with 5 days stay of execution of that judgment and as such it was one within the jurisdiction of the court and is not subject to attack in this proceeding.

We do not wish to be understood as approving the actions of the trial judge in pronouncing sentence. The language used by him in sentencing the prisoner was such as to...